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Pet custody on divorce

Insights - 08/05/2017

Internationally family courts are tackling the debate on whether pets are property or family. This is a difficult issue that pet owners have to deal with when going through divorce or separation proceedings.

The issue came to the forefront most famously during the divorce settlement negotiations, between Amber Heard and Johnny Depp which dealt with the care of their pets – including the dogs, who made front page news over the Australian smuggling fiasco!

A recent family law judgment in Australia held that pets are to be dealt with as any other property upon a divorce. Surprisingly in the case concerned the parties had reached an agreement with regard to all other matrimonial assets but could not reach an agreement with regard to their pet dog which led them to (no doubt) costly court proceedings.

In December 2016 Canadian courts came to a similar decision finding that pets could not be treated as children when dealing with a divorce.

Such decisions may be surprising for pet owners most of whom I know see their pets as family, sometimes spending as much on their birthday and Christmas gifts as they would their human family members.

In January 2017 the courts in Alaska took a unique position and decided that pets are to be treated as children. The default position there is now that joint custody and the well-being of the animal is now to be taken into consideration. Pet owners around the world will rejoice at this progress!

Sadly for some, however, the courts in England & Wales continue to treat pets as property when dealing with a divorce. The courts will only decide on issues such as where the pet will live and deal with the transfer of ownership if required to do so. Pets are not considered to have any emotional value and the courts do not apply any welfare principles when making a judgment. Pets are treated as any other asset of value such as cars or jewellery when considering the overall financial settlement. Diamonds are a girl’s best friend vs dogs are a man’s best friend?

For those lucky enough to come before a judge sympathetic to the feelings of pet owners the court may also consider factors such as who cares for the pet, who can afford the pet and who can adequately provide for the pet when coming to a decision. This is however not an absolute requirement on a judge.

For unmarried couples the situation is even more difficult. On separation, if an agreement cannot be reached the only recourse is through the small claims court. The small claims court will simply consider factors such as who paid for the pet and ownership of the pet when coming to a decision. Emotional factors are to be left at the courtroom door.

Separating spouses and unmarried couples may therefore want to consider negotiations outside the courtroom when considering “custody” and “visitation rights” to their pets. Alternatively there is the option to migrate to Alaska.

If you have any queries on family law matters please contact Jennifer Gray on [email protected] or by calling 020 8971 1056, alternatively please visit our Family Law team page to contact another member of the team.

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